Florida Appeals Ruling on Gun Gag Law

The state of Florida is appealing a federal judge's ruling that halts implementation of a law preventing doctors from asking patients and families about guns in the home.

"This law was carefully crafted to respect the First Amendment while ensuring a patient's constitutional right to own or possess a firearm without discrimination," Florida governor Rick Scott (R) said in a Monday press release announcing the appeal, which was filed by the state Department of Health. "I signed this legislation into law because I believe it is constitutional and I will continue to defend it."

Scott signed the measure, known as the Firearms Owners' Privacy Act, on June 2, 2011. The law made it illegal for physicians to ask patients about guns in their homes; violators faced $500 fines and loss of their medical licenses.

A few days after Scott signed the bill into law, medical groups filed suit to overturn it. Bernd Wollschlaeger, MD, a family physician in North Miami Beach, was lead plaintiff.

In September 2011, U.S. District Judge Marcia Cooke ruled the law unconstitutional. In her 22-page opinion, she ridiculed arguments by state officials that the law is necessary to protect gun rights.

"Despite the State's insistence that the right to 'keep arms' is the primary constitutional right at issue in this litigation, a plain reading of the statute reveals that this law in no way affects such rights," she wrote.

Appointed in 2004 by President George W. Bush, Cooke asserted that, instead, the legislation clearly violates both physicians' and patients' rights to free speech.

"On its face, the Firearms Owners' Privacy Act places restrictions on a practitioner's freedom to inquire about or discuss a particular subject matter," making it unconstitutional, she wrote.

Pediatrics groups have recommended that physicians ask parents whether they keep guns at home, and discuss gun safety with those that do in order to prevent shootings involving children. In 2009, according to the CDC, nearly 400 children younger than 15 were killed by firearms.

But gun-rights advocates contended that such questions are an invasion of patients' privacy and an infringement of Second Amendment rights.

The Florida Medical Association did not sign on to the lawsuit. It had originally opposed the law when it first came under consideration in the state legislature, but backed off when it was amended to allow physicians to ask about guns at home if they believed there was an immediate danger.

Cooke ruled that asking patients about gun ownership was not only irrelevant to Second Amendment rights, but also did not infringe on their privacy.

She noted that, whereas the government can and does compel gun owners to share personal information with the government when they purchase and license weapons, physicians cannot.

Although some people may be "offended or uncomfortable" at the mere question about gun possession, Cooke added, there is not a compelling government interest in protecting them from such discomfort.